Criminalization of Abortion in El Salvador

Frieda Bequeaith

El Salvador is one of seven nations in the world where abortion is illegal with no exceptions. Five of the seven nations are located in Latin America, but there are circumstances in El Salvador that often make it the focus of abortion debates. To understand how these circumstances intersect with abortion, the issue should be looked at from a reproductive justice standpoint.

What is reproductive justice?

Reproductive justice is an intersectional theory emerging from the experiences of women of color whose multiple communities experience a complex set of reproductive oppressions. It is based on the understanding that the impacts of race, class, gender and sexual identity oppressions are not additive but integrative, producing this paradigm of intersectionality (Ross).

Reproductive justice places abortion and reproductive health issues in the larger context of the well-being of families and communities. The ability of any person to determine their own reproductive destiny is directly linked to the conditions in their community and these conditions are not just a matter of individual choice and access (Ross).

Reproductive oppression is the control and exploitation of individuals through their bodies, labor, and reproduction. The isolation of abortion from other social justice issues that concern all our communities contributes to, rather than counters, reproductive oppression by neglecting the intersection of issues that directly affect a person’s ability to make decisions about their reproductive health (Ross). This is why it is imperative to go beyond “pro-choice” when understanding issues of abortion. While I do not go into great detail of other reproductive oppressions facing people in El Salvador, it is important to approach the issue of abortion access with the understanding of its place within a social context and its relation to other ideas of “healthcare.” It is important to keep in mind that access and choice are two very different issues when it comes to abortion.

History of abortion in El Salvador

The current laws ruling abortion access in El Salvador can be traced back to colonization. El Salvador was colonized by Spain in the 16th century to extract resources and slave labor. At the time of colonization the country was populated primarily by three Indigenous tribes: the Pipil, Lencas, and Chortis (Cultural Survival). El Salvador gained independence from Spain in 1821; a century and a half of oligarchy and military dictatorships followed (Cultural Survival). A twelve-year-long civil war ended in 1992, after destabilizing the military and establishing a more direct democracy. The leftist rebel movement, Farabundo Martí National Liberation Front (FMLN), became one of the major political parties.

Reproductive rights were not at the forefront of revolutionary activity in El Salvador during the 1960s and ’70s. While second-wave feminist movements gathered support in Europe and North America during this time, many Latin American countries were busy fighting dictatorships and civil wars that resulted from decades of colonization. It is not that women did not organize, but rather they did so to oppose the brutal regimes and to address the needs of poor populations hit by the recurrent economic crises. Reproductive rights just had to wait. By the time Latin American feminist movements began to focus on reproductive rights, generally in the 1990s, the global context had changed and the conservative right had also set up a strong opposition to any change to the status quo (Anderson).

Erasure of Indigenous knowledge

It is important to note that abortion has been around as long as people have been getting pregnant. It has existed in every society, and it was often feminized people who held the knowledge. Western medicine invented its own procedure and language around it but by no means invented the concept. The colonial erasure of Indigenous knowledge has left most Salvadorans reliant on Western healthcare.

There are still Indigenous people in El Salvador today, but after centuries of genocide and oppression, they exist in small rural communities, virtually all of which face extreme poverty. Many of the communities identify as Pipil (Cultural Survival). Indigenous language and culture are fleeting; after state-sanctioned massacres of Indigenous people in the 1930s, many tribes further assimilated into the dominant society (Cultural Survival). I could find no evidence of precolonial knowledge being used in the abortion process; however, I strongly believe this form of resistance has been utilized in the past and most likely continues today without external detection.

Catholic influence on government

Catholicism was forced onto El Salvador’s Indigenous people under colonial rule and is the country’s official religion today. Latin America is the largest Catholic region in the world, and the church continues to have a major influence among governments (Pothecary).It is a common misconception to believe moral opposition to abortion has been historically constant. It was not until the late 1800s the Catholic Church considered that life started at conception (Brind’Amour). Even in the beginning of the 20th century, when many Latin American countries passed their current legislation that allowed legal abortion under certain circumstances, the Catholic Church did not pose strong opposition (Brind’Amour). Abortion reforms were passed by a nucleus of male politicians and doctors, legalizing abortion only in very limited circumstances and required the authorization of a doctor or a judge. Therefore, it represented no real threat to the dominant discourse of abortion being morally wrong. The church only began organizing against abortion decriminalization when feminist movements came together to claim the autonomy of people’s bodies (Anderson).

Since the 1980s the increasing influence of the religious right within the Republican Party has implied that U.S. reproductive rights policies have been increasingly anti-abortion. This has affected Latin America directly, by banning federal funding for international non-governmental organizations (NGOs) involved with advocating for abortion decriminalization, known as the Global Gag Rule, currently resurrected under the Trump administration. The U.S. also influences Latin America indirectly, through the legitimacy given to anti-abortion discourse. Latin American politicians often seek the support of the Catholic Church, U.S. Republicans, evangelical Protestant churches and anti-abortion groups to strengthen their chances of winning office (Anderson).

Modern law

After El Salvador’s civil war ended in 1992, the issue of abortion was re-examined. The country’s abortion law, like the law in most Latin American countries at the time, was already a near-ban. The few exceptions included certain cases of sexual assault, fatal fetal anomalies, and risk to the mother’s life. For most of the 20th century the law was rarely discussed and enforced subjectively (Hitt).

In 1998, the Penal Code of El Salvador was amended to remove all exceptions to the prohibition against abortion, making abortion for any reason a criminal act (Jelen). This is the current legal code. The FMLN opposed the abortion ban when it came up as legislation throughout the 1990s but ultimately failed to outweigh the influence of the Catholic Church in 1998 after a lobbying effort by the country’s archbishop. With the support of the Catholic Church, legislators amended the Salvadoran Constitution the following year to state that life begins at conception, securing the abortion ban’s legal standing and awarding legal status to fetuses (Strochlic 2017). Since becoming a formal political party, the FMLN has moved increasingly away from its leftist roots. Politicians are also afraid of losing votes, as most Salvadorans do not support abortion access (Jelen).

“The ban was part of a backlash,” said Luisa Cabal, the legal consultant for Latin America at the Center for Reproductive Rights, an abortion rights organization based in New York. The new law, Cabal said, was a result of “the church’s role in pushing for a conservative agenda” (Hitt).

Intersection with other reproductive justice issues

El Salvador’s abortion ban has, expectedly, not stopped people from obtaining abortions. According to figures by the World Health Organization, more than 35,000 women obtain clandestine abortions in El Salvador every year and in 2011 at least 11 percent of people who underwent an illegal abortion in the country died (Nikolau).

The issue of abortion access must be placed alongside other reproductive health issues. El Salvador has one of the highest rates of femicide, the deliberate killing of a female, in the world and some of the highest rates of domestic violence in Latin America. 32 percent of Salvadorans live below the poverty line. The criminalization of abortion disproportionately affects impoverished people, further explained later. In addition, sexual violence is ingrained in the country’s gang warfare and contraception is religiously prohibited, expensive, and difficult to obtain (Strochlic 2017).

The teenage pregnancy rate is Latin America’s highest. Dr. Roberto Ochoa, the director of the Maternity Hospital in San Salvador, estimates 30 percent of pregnancies are to women and girls under the age of 19, of which a significant number of are results of sexual assault or incest. He says, “the methods resorted to by some of these women are frightening, and in most cases incredibly dangerous” (Pothecary). Suicide is the leading cause of death for pregnant teenagers in El Salvador (Strochlic 2017).

These issues magnify the danger of the abortion ban, which in turn punishes the victims by “putting marginalized women in prison, undermining trust in the medical system, and leading some desperate young girls to seek desperate options” (Strochlic 2017).

Criminalization

Since 1998, more than 150 people have been prosecuted under the country’s harsh law, some as young as 12 years old (Strochlic 2017). Activists in El Salvador say its enforcement of the anti-abortion law is harsh, even among countries with similar legislation. “It has created a culture of suspicion” they say, “in which women are presumed guilty and reported by the very health professionals they turn to for help” (Webber). What makes El Salvador unique is the network of law-enforcement actively criminalizing abortion. There are police, investigators, medical spies, people called “forensic vagina inspectors,” and a special division of the prosecutor’s office responsible for Crimes Against Minors and Women, a unit charged with capturing, trying, and incarcerating people involved with abortions (Hitt).

Overcrowding at El Salvador’s Ilopango Women’s prison. Credit: Meridith Kohut for The New York Times

El Salvador’s Ilopango Women’s Prison is where most of the women convicted of abortion, in some cases charged with murder, serve time. It is extremely overcrowded, operating at 900 percent capacity. Dennis Muñoz, a lawyer specializing in representation of those jailed under the abortion ban, describes the prison as “living hell” (Bohn).

The criminalization places an emphasis on the individual. According to a prosecutor in San Salvador, the police will interview friends, family, and employers of the accused. Medical records are seized. In the event that the person’s illegal abortion went badly and they require a hysterectomy, the uterus is analyzed and used as evidence against the accused (Hitt). This level of individual persecution breeds a culture of fear and silence.

Dee Redwine, head of the Latin American program at the Planned Parenthood Federation of America, called the abortion legislation “an aggressive, punitive attack on women… a witch-hunt is a very good way of putting it” (Webber). This comparison to a witch-hunt, and all the horrific historical images it invokes, is what sets El Salvador apart from the other nations with a complete ban on abortion.

Resistance to the ban

Modern resistance to the abortion law works within the system and outside the system. Working within the government and health systems involves attempting to change the law through protests, lobbying, and legal proceedings. Working outside the system involves providing abortions to people who want them. Each category faces limits and challenges, and cross-over between the two exists.

Working within the system

Legal strategies usually do not demand the current ban is repealed, but that it is rolled back to resemble that of many other countries in Latin America, where abortion is illegal, but there are exceptions in cases of physical danger, sexual assault, and occasionally the age of the pregnant person.

Debate around the abortion ban escalated after the rapid spread of the Zika virus in 2015. Because the virus is thought to cause birth defects, El Salvador joined other countries in Latin America in recommending that women delay pregnancy. The recommendation was insufficient due to the religiously motivated inaccessibility of contraception in El Salvador.

The Zika virus debate is indicative of rhetoric often found in attempts to work within the system. The ability to publicly support abortion only in the context of a “victimization”: the endangered mother or the endangered child. I say “mother” in this context, despite not all people needing abortions being female, because the story often told is that of a feminized victim. A victim that can evoke the most sympathy and compassion; unfortunately that victim is a cis woman. I say “victim” in this context in the way that a majority of people would agree with, a victim of a force blatantly outside of their control. A fetal disease, an Act of God, is understood without context. A victim of economic, social, political, or religious oppression requires context and can be debated, depending on the power of the oppressor. This is not a limit only in El Salvador, but worldwide due to the moralization of abortion. This is also why it is less likely to demand a complete repeal of the ban and only request it exclude people put in situations where the choice to abort was not made on the grounds of not wanting to have a child.

One of the strongest campaigns against the abortion ban is one that heavily relies on the pathos of victimization. Morena Herrera, El Salvador’s leading advocate for abortion law reform and a former FMLN guerrilla, is now director of the San Salvador Feminist Collective (Webber). The collective launched a campaign in 2014 to free 17 women known as “Las Diecisiete [17]” who between 1999 and 2011 were jailed after miscarriages. Many were charged with homicide because their fetuses were ruled viable, or able to survive outside of the womb (Bohn). Teodora Vásquez is one of the 17 women. After an Amnesty International campaign, she has become the public face of women imprisoned under El Salvador’s abortion laws. She was jailed in Ilopango Women’s Prison for 30 years after having a miscarriage, convicted of aggravated homicide (Strochlic 2016). Recently, Vásquez’s case was adopted by the Citizens’ Association for the Decriminalization of Abortion, a Salvadoran activist organization that defends new cases and appeals old ones (Strochlic 2016).

Two organizations, Citizens’ Association for the Decriminalization of Abortion and the “Las 17” campaign, spread awareness through the internet, radio, and public marches. The marches are usually organized around a single person who has been jailed under the abortion law, often for miscarrying. The marches demand immediate release of the individual and pressure politicians to scale back the abortion law.

Dennis Muñoz is an independent lawyer fighting to reduce sentences for women jailed due to the abortion ban. He faced harsh social backlash when he started defending these women (Bohn). “He has huge guts to go against the system, especially as a man,” said his colleague Katia Recinos, a lawyer at Citizens’ Association for the Decriminalization of Abortion. “It’s rare for men here to join the cause. This is a machismo country where women’s rights don’t get much attention” (Bohn). One limit working within the system faces is that if movements are controlled primarily by men, there is a danger of reverting back to the reforms of the early 20th century: legalized abortion only in very limited circumstances and required the authorization of a doctor or a judge, who would most often be male, maintaining authoritative control over who could not access legal abortion (Anderson).

In fall 2016, lawmakers in El Salvador considered whether to allow abortion in cases of sexual assault or risky pregnancy. The proposal, presented by the left-wing FMLN ruling party, seeks to legalize abortion in cases when the fetus is unviable. “It’s a duty of legislators to give women a chance to save their lives, so that they don’t die in those circumstances,” said Congress President Lorena Pena, who backed the proposal. “[The bill] is also meant to take into account the impact giving birth has on girls who have been r*ped.” The bill has not yet been voted on and will likely face harsh opposition. Hopefully the FMLN’s history will not repeat itself: in 1999, when faced with amending the constitution to award fetuses legal status, the FMLN discouraged its members from voting on the party’s position. Leadership of the party was afraid they would face backlash from voters in the next election if they actively opposed it. The amendment passed overwhelmingly (Hitt).

Working outside the system

The strict laws have fueled an underground abortion economy in El Salvador. Between 2005 and 2008, the Ministry of Health counted 19,290 underground abortions. Other estimates put that number as the annual average. A minority of healthcare workers in El Salvador have opposed the abortion ban by continuing access to medical abortions. For health care providers who assist in an abortion the punishment is imprisonment for six to twelve years (Jelen).

The active pursuit of criminalization extends into the medical community: “Many doctors are afraid not to report,” says Mira, the obstetrician in San Salvador. “Doctors are afraid that the nurses will report them for not reporting. The entire system is run on fear” (Hitt). Certain physicians are working to combat the lack of abortion providers by creating a network of trained professionals across the country, including legal counsel and administrative help (Strochlic 2017). The harshly enforced illegality of what they are trying to do limits organizations from forming. A Salvadoran pharmacist who has advised hundreds of people to abort using Misoprostol, an abortion inducing drug, said, “We’re forced to operate like criminals because that’s what we are according to the church and government, we’re all facing a wall” (Bohn).

Doctors, nurses, and pharmacists make up the majority of this underground system. Many of them operate independently or in small groups, unaware of the others. Most operate on a referral system from past clients to ensure the client is not an undercover officer (Strochlic 2017). These independent workers are often aided by organizations outside of El Salvador, such as Women on Web. Packages of abortion pills and patient information come from Veronica Fernandez-Montes, an Amsterdam-based employee of the online medical abortion facilitator, which mails pills to countries around the world with restricted abortion access. “It would be impossible to operate in El Salvador without doctors,” she says, “many Salvadoran women don’t have access to the internet. If they do manage to order the pills, the package can get delayed for weeks or months in the Salvadoran post, likely arriving too late to be effective” (Strochlic 2017). While the international efforts attract media attention, less is paid to the local activist strategies that have surged in response to the introduction of the Internet and Misoprostol. Across Latin America, young feminist activists are taking the lead to make safe abortion more accessible to poor people using Misoprostol; some groups provide information and others provide pharmaceutical abortion services (McReynolds-Pérez).

Some physicians offer abortion services through private clinics, which are safer for healthcare workers due to less government involvement than public hospitals (Strochlic 2017). Private clinics means costs of transportation, lodging, and the procedure, limiting access to people in poverty who are already disproportionately criminalized. One private clinic in eastern El Salvador offers procedures on a sliding scale, charging between nothing and $1,000 (Strochlic 2017). This is one way to avoid public hospitals. Another way is having money; Salvadorans with money retain the “right to choose” by flying to a different country where abortion is more accessible, such as Mexico (Hitt). Even today, people can prevent persecution by seeking medical help for self-induced abortions at private hospitals instead of public ones, if they can afford it (Webber).

Among the very poor, you can still find the back-alley world where it is common for clients to turn up in hospitals with medical complications, facing arrest (Hitt). This is proof that the abortion ban disproportionately affects low-income, uneducated people who lack access to birth control and prenatal care. A study conducted by the Journal of Public Health found that “common occupations listed for women charged with abortion-related crimes were homemaker, student, housekeeper and market vendor.” An earlier study by the Center for Reproductive Rights found that the majority were “domestic servants, followed by factory workers, ticket takers on buses, housewives, saleswomen and messengers” (Hitt). The abortion ban creates another social divide between the wealthy and the poor in a country already fraught with issues of poverty.

The moralization of a health issue

Another legacy left by colonization, rooted in 16th-century Spanish Catholicism and 20th-century U.S. Capitalism, is the adaptation of Western ideologies. The gender binary, mass incarceration, the militarization of police, the reliance on wage labor, and countless others intersect with the effect of the abortion ban. The highly moralized discourse on abortion actively separates it from issues that are less moralized. To think of it as a self-contained issue is lacking, and will never lead to a viable solution:

“We must end the separation of abortion rights from other social justice, reproductive rights and human rights issues because it is difficult – if not impossible – to mobilize communities in defense of abortion rights if abortion is taken out of the context of empowering women, creating healthier families, and promoting sustainable communities” (Ross).

A significant problem with international attention to El Salvador is rooted in the moral fragility of abortion, and that is attention given only to criminalized cis women who did not choose abortions but instead had miscarriages. While the treatment of these women is unjust, they are silently juxtaposed in the media next to people who have actively sought out abortions. Almost all the media coverage I found of abortion legislation in El Salvador focused on people who did not choose abortion, and therefore did not address issues of choice or access, only issues of intense criminalization of innocent women. Yet to call these women “innocent” implies the guilt of those who have abortions. To only fight for the rights of the Las 17 does not address the issue that needs to be addressed: safe access to abortion for all citizens of El Salvador.